John Marshall Argued for the Independence of Federal Prosecutors
I think it’s relatively commonly believed these days that the President has a great deal of authority of federal prosecutions, even if he should generally abide by a norm of non-interference. This is obviously the view of “unitary executive” types, but even those who question some aspects of the unitary executive thesis have sometimes accepted this as to criminal prosecutions.
One early example I often see cited is Thomas Jefferson’s order to the district attorneys to stop prosecuting cases under the Sedition Act, which he believed unconstitutional. Here, for instance, is his explanation in an 1801 letter to Livingston:
the President is to have the laws executed. he may order an offence then to be prosecuted. if he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into legal train. I found a prosecution going on against Duane for an offence against the Senate, founded on the Sedition act. I affirm that act to be no law, because in opposition to the Constitution; and I shall treat it as a nullity wherever it comes in the way of my functions. I therefore directed that prosecution to be discontinued & a new one to be commenced, founded on whatsoever other law might be in existence against the offence.
So I was very interested when Professor Matthew Steilen linked on Twitter to an account of a letter by John Marshall which seemed to disclaim presidential authority, writing: “The laws are made, & those who violate them are prosecuted by the proper officer wo the knowledge or direction of the President.”
Neither Professor Steilen nor I had the original text, and the letter was not as easy to find online as Jefferson’s earlier letter, so I dug it up in Volume 6 of the Marshall Papers and will copy it below.
For context, this is the year before the Jefferson letter, while John Adams is still President, and Marshall is explaining to his friend St. George Tucker why President Adams is not going to stop a prosecution of a man named Callendar. (Tucker had pointed Marshall to several criticisms of Adams, including
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